Authority to Employ White House Office Personnel Exempt From the Annual and Sick Leave Act Under 5 U.S.C. § 6301(2)(x) and (xi) During an Appropriations Lapse
Background
- White House Office officials exempt from the Annual and Sick Leave Act (Leave Act) may be paid through lapse periods if authorized by law during the lapse.
- The Leave Act excludes certain presidential appointees (6301(2)(x) and (xi)); those officers earn salary by virtue of office, not by hours worked.
- Antideficiency Act limits on pre-appropriation obligations apply to salaries; however, “authorized by law” and “necessary implication” can permit such obligations.
- Earlier OLC opinions held that PAS officers are paid by virtue of office and may work during a lapse without incurring new obligations; they concluded salaries are authorized by status.
- This opinion extends the analysis to White House officials exempt from the Leave Act, concluding President’s appointment/designation authority implies authority to incur salary obligations during lapse.
- The conclusion: exempt White House officials may work during a lapse so long as their employment does not create additional government obligations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether exempt Leave Act officials may work during a lapse | Verrilli/Administration: such officials are entitled to compensation by status; thus authorized by law | Attorney General: authority to continue obligations arises from appointment/designation powers | Yes, they may work during a lapse |
| Whether such salaries can be incurred without an appropriation | Salary entitlement based on status; not tied to hours worked | Obligations must be authorized by law or implied by duties; President’s authority supports advance obligations | Yes, salary obligations are authorized by law or implied by statutory framework |
| Role of 5 U.S.C. § 5508 and 6301 exemptions in authorizing pay during lapse | Exemptions protect compensation by status, not hours | Statutes preserve status-based pay; leave-act exemptions survive lapse | Exempt officers earn pay by status and may be paid during lapse |
Key Cases Cited
- Isbrandtsen Co. v. Johnson, 343 U.S. 779 (U.S. 1952) (background common-law rule: salary attached to office; hold office to earn pay)
- Espinoza v. Farah Mfg. Co., 414 U.S. 86 (U.S. 1973) (statutory exemption implications; employment of aliens analogy)
- Grant, 237 F.2d 511 (7th Cir. 1956) (obligation arises by virtue of status; PAS officers paid regardless of work during lapse)
- Pack v. United States, 41 Ct. Cl. 414 (Ct. Cl. 1906) (compensation incident to office; salary rights despite duties performed)
- Sleigh v. United States, 9 Ct. Cl. 369 (Ct. Cl. 1873) (salary entitlement tied to office, not performance of duties)